Court surveillance is an extremely valuable resource for many court actions, whether criminal, civil, domestic, or family law. Shedding light into the value of doing surveillance in a private or secretive manner, host Jonathan Kraut guides us into the world of information collection. He taps into the kinds of admissible evidence and some of the rules by which the collection procedures are governed. Ultimately, a good private investigations firm can aid in navigating the waters of most legal battles, and Jonathan lets us in on how they make sure covert surveillance is court-admissible.
Listen to the podcast here:
The Value Of Surveillance
Making Sure Evidence Collected Covertly Is Court Admissible
The topic of this episode is The Value of Surveillance. Let’s define surveillance. Surveillance is essentially some manner or method of reviewing or recording activity. Surveillance can be covert or overt. Overt means out in the open, everyone can see and it’s obvious you’re conducting surveillance. Covert means secretive, private, unseen, hidden and so forth. Why would we do surveillance? What is the point of that? What’s the issue with surveillance? First, surveillance is often conducted by investigators to identify unfaithful conduct, especially for marital issues and relationships. Surveillance can also detect deceptive behavior.
What Is Surveillance
For example, a business partner says, “I’m going to a conference in Vegas.” In fact, they don’t go to a conference in Vegas. They’re doing something else in Vegas, not a conference. Another form of deceptive activity is saying, “I live in one place.” A relationship or a partner says, “You live there?” “Yeah, I do.” They come to find out that they don’t live there. They live somewhere else or they’re married or they have children and they are living with children. That’s deceptive activity. Surveillance also applies to hidden income. An example of hidden income would be spousal support or child support, where income is not disclosed correctly or accurately. Surveillance can locate that.
Also, surveillance can identify if someone is at risk. For example, children at risk, the elderly at risk and the impaired at risk. Let’s say someone has autism or Alzheimer’s or some cognitive issue or children, which are very vulnerable. Surveillance can verify or determine that this person is being treated safely and correctly and sometimes, unfortunately, inappropriately and there is misconduct. Finally, surveillance can help determine what someone’s dominant representation is. We want to get back into profiling, which a lot of investigators do. The dominant representation is the way that someone states it is, the way they say that it is. It doesn’t mean that’s a way it actually is but it’s the way it should be. I can give you an example of that where we had a woman who said, “I’m a dance teacher. I’m very active on the weekends. I’m out of town. I’m very happy. I’m very interactive. I’m very sociable. I’m a great person. I have lots of friends.” That’s the representation.
Is the fact that or not? The fact was no, she was reclusive. She would drink by herself in her place. She didn’t have friends. She didn’t go out dancing. She wasn’t that active. That was all a ploy. The representation we found to be untrue. What someone does with that, our client? We don’t know. Often, they just want to verify if the representation is true. Another example is the gentleman said he was an engineer. He was a graduate of all these technical schools. In fact, he was not an engineer. He was a maintenance worker. He did not have training. He did not have background and his representation was that he’s a smart guy and it was not true. He may have been smart, but it wasn’t in the engineering field.The right attorney can make all the difference in the world. Having an attorney that takes money and doesn't work is not helpful. Click To Tweet
How Covert Information Can Be Used
Let’s define how covert information can be used. Obviously child support, alimony, visitation and dissolution of a marriage is the most common way that our firm has come across. We want to gather information for the court and to make fair and more correct decisions. Some people try to avoid paying alimony, spousal support and these orders for alimony and support are rare, but do occur. We can identify whether more money is due or not. Dissolution of marriage is a big one. So-and-so says, “My husband or my wife is cheating on me.” Our first question is, “Do you have an attorney and/or intending to dissolve your relationship?” If they say, “No, I don’t have an attorney and I’m not intending to dissolve the relationship.” Our next question is, “What’s the point?” “I just want to know. I’m curious.” At times, we may engage in that work but generally, we don’t because there’s no reason to satisfy someone’s curiosity that will not go anywhere. Our time is valuable. Our agents are very busy and we don’t like to waste time for someone’s curiosity only. If it might turn into or it’s a possibility they will turn into a dissolution action, then yes, we would take the case. If it never could, there’s no way and they’re not considering that, I hate to get involved with that.
Child custody is big because it involves the safety of the child. Perhaps who is in contact with the child? Are there gang members, drug addicts? Are known criminals visiting the location where the child is at? That could put the child in danger. Another example of conducting surveillance would be is a car seat being used? Is the driver driving safely? Are they intoxicated? Are they speeding? There are some things that involve the safety of the child while in a vehicle and that would be very big to know. Another way that surveillance can be used is for violation or considered to discuss the violation of a court order.
A court order would be the judge makes a rendering and says, visitation hours are from here to here. You cannot drive by or pass in front of the house, except during that time. I will have you send that to the person with the order who pertains a neutral third party to pick up the child. Are those court orders being followed or not? The stay away orders, protection orders, do not call orders and do not stalk orders. Stay away from the business, stay away from an employee, do not call and harass. We can covertly make recordings, film, have visual testimony and witnessing of events and all that is part of surveillance. Surveillance can be valuable. Sometimes the information that we gather is used for negotiation or renegotiation and for reassessment.
What that means is the judge could say, “Based on the evidence that the investigation firm provided, a better or fairer approach would be so-and-so.” The judge could make a reassessment or the attorneys involved can make a reassessment and say, “This is not working out. Let’s do something new.” What does the court need to see? The court for surveillance does not want to see some black and white video taken 300 miles away that no one can make out, that has no date timestamp, that has no point of reference. It has to be clear. It should be in color. It should be verifiable independently as to when it was taken, who took it, what we’re seeing and it should speak for itself. Believe it or not, we had a client. It’s a murder case where we were asked to analyze and review surveillance data of the murder itself. We saw it. It clearly was the person. It clearly fit the timeline in the police report. It clearly fit the coroner’s report and we actually saw the murder that was being filmed as it occurred.
Believe it or not, the defendant in court said, “That looks like me but it’s not me.” We had to go through great trouble to prove that it was him. It looked like him. It acted like him. Everything indicated it was him. The expert witnesses had to determine that was him. That was independently verifiable by a third party. In that case of an expert witness sometimes and usually, the documentation, the video, the recording and the picture speaks for itself. The information has to be court admissible. That means that the way that the information was gathered meets criteria of public access or permissible access. You can’t have a ladder going up 40 feet filming a helicopter from above or a drone is not permissible and that it’s gathering information that’s not available to the public. It’s got to be something to the public.
A film or recording in a public place is admissible. A film or recording inside a house or private room is not admissible. It’s got to be admissible. There should be a conclusive pattern of activity. Let’s say a lady is meeting with a gentleman. She’s married and he’s married. They’re meeting at a hotel on Friday night and staying all night together, five Fridays in a row. We don’t know what’s happening inside the hotel room, but that pattern demonstrates some conclusive activity that indicates there’s misconduct. We’re not saying they’re sleeping together, but it’s not appropriate for a man and woman married to other people to spend the night together five weeks in a row. That’s what’s called a conclusive pattern of activity, an activity that demonstrates intent.
I can give you a case for us where there was a person who kept emailing and texting, “I want to see you. I want to talk to you. I want to settle this.” There was some financial dispute. Every time there was an appointment or a meeting time, the person didn’t show but would say, “I can’t make it this time, but next time. I’m so sorry. Something came up.” After 4, 5 or 6 times of this, the pattern of intent is, “I want you to go, but I’m not going to go. I’m going to disappoint you. I’m going to tempt you to do something that I know I have no interest in meeting my obligations or following up.”
That tells the court that there’s abuse going on. That’s abusive conduct. That pattern of intent of not showing up again and again demonstrates to the court that there is a pattern that is unclear and resolute. Finally, the court needs to know who is who. This is important. A lot of divorce cases are with two parties. One party is a little bit more submissive and fairer, more logical and more accommodating. The other party is very aggressive, hostile, makes allegations and is angry. The court doesn’t know based on demeanor who is who. The court should get evidence independent of what the party is saying that demonstrates who is abusive and who is not. As big with the court, they want to know who is who. They want to know through surveillance, whether it’s overt or covert which means who’s telling the truth and who is not. Who is aggressive and overly zealous and who is compliant and trying to cooperate is really big for the court.There's no reason to satisfy someone's curiosity that will not go anywhere. Click To Tweet
Why Is The Right Attorney Critical
Why is the right attorney critical? The right attorney can make all the difference in the world. The wrong attorney will not find the PI firm. He will not make suggestions as to what the PI firm can do. He will not have many facets of approaches to the case. We have one and if that line is blocked, they give up. The wrong attorney will not subpoena or issue a request for information or witnesses based on surveillance. The wrong attorney will not provide court admissible evidence. They will not act in plenty of time in advance. They’ll do things late. They’ll miss their deadlines and conferences. They will be disorganized, unfocused and unprofessional. They won’t use information that’s gathered legally that pertains to the case.
Why Is The Right P.I. Firm Critical
The right attorney who will do all those things that I mentioned correctly will change the case. Having the right attorney is huge. Having an attorney that takes money and doesn’t work is not helpful. Why is the right PI firm critical? Let’s be more positive then. They provide admissible information. They locate witnesses and take statements. They conduct surveillance under the law. It’s big. They conduct covert activities and they pose perhaps as a different party pretending to be someone at the bar who’s interested, pretending to be a solicitor for business, work or getting a contract. Pretending to be something that relates to the case. We can do that. The right PI firm can testify in court and is used to it and likes to. They can provide new data and does not previously know. That’s the right PI firm.
What does the court consider admissible? The court is going back to that. It wants it independently verifiable. It does not want hearsay. They want eye witnesses that are in fact, relating to what they saw and not what someone told them. They want video and photo evidence from a licensed firm and they also want facts and sometimes they may want an opinion. An opinion would be from, and the judges can ask, “I consider you an expert witness. What is your opinion? If someone is going there every Friday with another man’s wife or another wife’s husband and they’re spending the night five Fridays in a row from 8:00 at night to 8:00 in the morning. They come out wearing different clothing and they walk in with suitcases and they don’t come out, what is your opinion? Is something going on?”
We could say, it’s highly probable that there’s a relationship that’s outside the marriage. We can’t say if it is, but it’s highly probable. Admissibility is very important. What will the court ignore? They will ignore fragments of data or fragments of information. An example would be that we have a video of someone driving by at high speed that appears to be the make and model of a vehicle that’s a driver who’s not supposed to be there, but we don’t have a license plate. We can’t make out the driver. In fact, that’s a fragment. It does not tell us it was or it was not that person. Old surveillance, something from 3 or 4 months ago and older probably is not admissible. The court doesn’t want to know what happened last year, especially what happened 5 or 6 Christmases ago. They’re not going back that far. Usually, 1 or 2 months or something between hearings is appropriate.
They do not want photos and videos from unlicensed persons. They don’t want private people, your friends, your family and your neighbors driving around following people. Not only is it not safe, but often what they say or what they record is not admissible. They don’t want incidental evidence. I have a great one from not that long ago. A lady found an airline request online that was never processed and that meant that so-and-so, her husband was going to go out of town. He never booked the flight. He was looking at flights and then for whatever reason didn’t go. That’s incidental. That doesn’t mean anything. That doesn’t show intent.
Evidence from a person, not in court. The court hates to hear what somebody else might say that doesn’t show up. Both sides have a right to cross-examination and both sides have a right to ask questions from that person. Evidence presented by a person not in court has a hard time getting in. You want to try and make sure that your witnesses are cooperative and helpful. A good PI firm could convince people to go and often pick them up and take them there. Information not provided to the opposition in time. The court will throw out things because they’re late. You don’t send a witness list the day before the hearing. It’s 30 days, but typically it’s about ten. I’m not sure what the rules are state to state, but there should be a witness list provided to each party in advance.
What types of rulings are possible? The court might ignore surveillance completely. We’ve seen this where they’ve already decided what’s happened and they forget the evidence. In this case, a mistrial, new trial or an objection to the ruling is common and possible. Sanctions may be ordered to pay the extra costs of surveillance. It’s frequent for our firm to get paid by the client and then reimbursed by the other party or they reimburse the other party for the costs the way to go through. Maybe there’s a bill due and the other party, the one that we surveyed has to pay us the balance. That’s pretty common.
Sometimes they start the clock of rulings based on the date of the hearing or the surveillance. If a surveillance was conducted on Tuesday and we go to court two weeks later. The judge might say, “As of Tuesday when we received independent and verifiable surveillance, we believe this to be true.” That’s the type of ruling. Sometimes there are no sanctions, no arrearages, no interest and no orders to pay. We got that at times and the court’s view of the parties may change, which is very big. We want to make sure the court correctly identifies who is aggressive and who is not, who’s compliant and who is not.
Surveillance after the hearing, often we continue to do some surveillance. Maybe not enough information was gathered or maybe the ruling was not consistent with the facts. Sometimes we want to prove the rulings were ignored. Sometimes we want to keep the opposition compliant. Sometimes you want to gather new evidence and information. I hope that was helpful. I think pretty quickly so if you have more questions, you can go to our website, NetCheckPI.com. Remember, information is power and good decisions start with great information. You can call my office and me anytime. We’ll be glad to help you. We hope that this episode is one of many for you. We’re trying to give you as much advantage in your issues as possible. Thank you.